Aiming for the stars: litigating for a tech-positive future

By Nani Jansen Reventlow, 21st November 2018

Sometimes, it is difficult to keep a focus on the positive when working in human rights. We are so engaged in fighting negative practices, legislation, and policies that it is easy for us to forget about positive developments that lie on the other end of the spectrum.

In the digital rights sphere, much of our energy and attention goes to battling mass surveillance, criticising discrimination in algorithmic decision-making, pushing back against online content regulation, etc., etc. The list is long and seems to keep on growing. Much of the strategic litigation work on digital rights runs along the same lines: challenging restrictive laws, seeking redress for human rights violations in the digital sphere –– work in the courts is often focused on obtaining judgments that change or redress negative situations.

What if we took a step back and considered what the positives are that we could aim for? Do some blue sky thinking and set our goals based on what it is we want to see, framed as a positive goal to pursue? During our recent “Future-proofing our digital rights” workshop, we had a number of conversations to do just that. We brainstormed about our future rights, crafting a “Universal Declaration of Digital Rights” on post-it notes and asked the question what cases we could win in the short-term for a better digital rights future.

These conversations brought into focus some of the positive ways our lives could be impacted by technology in the future. A greener world, for example, with fewer traffic deaths as we would have self-driving electrical cars that would spare the environment. Or a world in which the developments in tech have led to us needing to do less work, meaning we would have more time to do other things, such as create art and spend time with loved ones. Or a world where knowledge and learning is accessible to anyone, anywhere. In human rights work too, technology does not always have to be something we are fighting against. It may be that we will call upon international, regional and domestic authorities to utilise technologies for a fairer or more just world.

What would our litigation strategies look like if we aimed for such objectives? What kind of cases could we bring – now and in the future – if we aimed for the stars?

Compelling questions and ones we only just started the conversation on during our workshop. We would love to hear from you: if you could pursue any positive scenario you wanted, what would it be? And how would you do it? Get in touch to let us know!

The digital rights future we want: imagining a Universal Declaration of Digital Rights

By Nani Jansen Reventlow, 15th November 2018

In a perfect world, what would you like to be able to say is true about our digital rights five, ten years from now?

With this question, we kicked off the “Future-proofing our digital rights” workshop in Berlin late September. Representatives from Liberties, Privacy International, SHARE Foundation, Polish Helsinki Foundation for Human Rights, Oxford Information Labs, Liberty, Public Interest Litigation Project, Prototype Fund, Panoptykon Foundation, Bits of Freedom, Global Partners Digital, La Quadrature du Net, and Digital Security Lab Ukraine tried to imagine what a positive future conversation about our digital rights would look like and penned down a multitude of statements, ranging from “people have more time to the creative things they care about”  and “the Internet of Things has helped to limit climate change” to “the information shared on the internet can only be deleted in line with international human rights standards”, “children are safe in the digital context” and “no ‘black boxes’ are allowed to determine people’s rights”.

Temporarily switching our focus from the digital rights battles being fought today to the future we want turned out to be an invigorating and inspiring experience, which energy fed into our own imagining of a “Universal Declaration of Digital Rights”. Starting from how rights are currently protected in our international human rights system, we looked at how these would be interpreted in the future and asked ourselves would need to be established over the coming years.

The Declaration that resulted from our collective imagination was a combination of both a re-imagined existing rights, such as fair trial rights, focused on algorithmic decision-making, or a right to “understand the implications of technology” as a manifestation of the right to education, and the formulation of new potential rights, such as a right to modify and update devices, a right to interoperability of technologies, and the right to disconnect.

DING magazine made this wonderful visualisation:

One reflection that was shared by a number of participants was how time-resistant our current human rights framework is; a frequent point of consideration was if the newly imagined rights were truly new or if they would fall within scope of the existing framework.

Of course, there are other declarations and statements of our human rights in the digital age, such as the Article 19’s proposal for a Universal Declaration of Digital Rights, the Internet Rights and Principles Coalition’s Charter of Human Rights and Principles for the Internet, or ZEIT-Stiftung’s European Digital Charter. It was interesting to see many parallels between these projects and our collective creative imagination sprint.

What do you think? Do we need a re-imagining of our human rights framework to make it fit for the digital age? Or does our current framework suffice? Get in touch to let us know!

The “right to disconnect”: to what extent will we need a right to unplug from our digital lives?

By Jonathan McCully, 9th November 2018

It seems inevitable that, in the not too distant future, we will be living astoundingly connected lives. In Europe, internet access and the frequency of internet usage continues to rise. In 2017, 72% of EU citizens were reported as having accessed the internet every day, compared to 56% in 2011. Furthermore, the use of information and communication technologies is infiltrating our lives in more and more ways: we use them to carry out our jobs, declare our taxes, shop, bank, and keep in touch with family and friends. With these trends set to continue into the future, should governments and corporations protect us against the harms that might accompany the feeling or expectation of having to be online and connected at all times?

This question was discussed at DFF’s “Future-proofing our digital rights” workshop, during which participants looked at whether and to what extent we might need a “right to disconnect” as part of our human rights framework. Before considering what a “right to disconnect” would look like, the group considered the potential harms such a right would seek to protect us against.

At one level, the “right to disconnect” could be seen as a means of protecting personal data by providing individuals with control over when and under what circumstances their digital devices are connected and therefore collecting and potentially transmitting data about them. At another level, the right could be viewed as a means of ensuring respect for individual autonomy and self-determination by allowing individuals to live out their lives without having to be “online” and connected (i.e. a right to be a “digital hermit”). It could also be viewed as a right aimed at protecting the physical and mental integrity of a person. Some studies have shown greater levels of reported stress in those who feel the need to constantly check their emails, texts, or social media accounts, while other studies have shown a link between overuse of some technologies, such as social media sites and entertainment-on-demand, and poor physical and mental health. That being said, it still remains unclear to what extent we are truly harmed by being constantly or regularly connected.

One area in which the harms of being constantly connected have been explored more deeply is in the employment context. The pressure on employees to check emails outside of work has been linked to burn out, poor emotional well-being and strain on personal relationships and the feeling of having to check emails outside of working hours can have a negative impact on an employee’s health and well-being. So, should the “right to disconnect” be formulated as a right under employment law, i.e. a right that permits employees to log off from their work devices when outside working hours?

France has led the way on this interpretation of the “right to disconnect” (le droit à la déconnexion). In 2016, the French Labour Code was amended to require employers to implement “procedures for the full exercise by the employee of his/her right to disconnect” and to “establish[] . . . control mechanisms in order to regulate the use of digital tools, with the aim of ensuring compliance with rest periods and leave as well as personal and family life.” The “right to disconnect” was not explicitly defined in the code, but the amendment has followed a line of case law from the French Court of Cassation in the early 2000s that recognised that an employee should not be required to accept working from home (and bringing work materials home with them), or be expected to be reachable on the phone after working hours. This year, the French Court of Cassation ordered a British company to pay a former employee €60,000 because it failed to respect his “right to disconnect” from his phone and emails outside working hours.

Some other countries in Europe have followed France’s lead. For example, Italy enacted a law in May 2017 that required employers of flexible workers to include in their contracts “the technical and organizational measures necessary to ensure that the worker is disconnected from … technological equipment”. More recently, in August 2018, the Irish Labour Court awarded a business executive €7,500 after she was consistently expected to check her emails outside of office hours in contravention of Irish law on working hours.

The idea that we need a right or a law that protects us against the potential harms caused by overwork is not new. In fact, it is reflected in Article 24 of the Universal Declaration of Human Rights, which states that “[e]veryone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” However, is this a sufficient articulation of the “right to disconnect” we will need in the future? For instance, do we need a “right to disconnect” outside of the employment context? Is an employment right sufficient to fully respect an individual’s decision to be “offline” (i.e. the right to be a “digital hermit”) or an individual’s ability to control when and under what circumstances their devices are “connected” (and collecting data)?

To meet the potential shortcomings inherent in an employment “right to disconnect”, the right could be accompanied by two further formulations. The first could give consumers of Internet of Things (IoT) products the right to offline alternatives or the right to be able to use a product offline. This would mean that all features of an IoT product that do not require a connection should still be available when disconnected. For example, if a consumer buys a “smart fridge” they should have a right to use the fridge’s basic functionality without it having to be connected to the internet. This would help guarantee that, as IoT products begin to replace their non-digital, non-networked counterparts, those who wish to remain offline can do so. The second formulation of the right could protect individuals against being put at a disadvantage purely on the basis that they are offline or have no online “footprint”, which would also prohibit adverse conclusions being drawn against an individual solely on the basis that they lack an online presence. This would help ensure that individuals who wish to remain offline will not be compelled to connect in order to benefit from basic services such as access to welfare or health services.

It is difficult to envisage what the scope of the “right to disconnect” should be without a full understanding of the harms that may be caused by the feeling or expectation of always being connected in our work, social and home lives. More research on this topic would be a welcome addition to this conversation. Nevertheless, the discussion at the “Future-proofing our digital rights” workshop was a useful exercise in thinking about whether the categorisation of the “right to disconnect” as an employment right, as can already be seen in countries such as France and Italy, will sufficiently protect our (non-)digital lives in the future. Which begs the question, if we really need a “right to disconnect”, what would the contours of such a right be?